This Month’s Liberty Forum: Michael Oakeshott’s Liberalism and its Rule of Law

This month’s Liberty Forum considers the ideas of the English political philosopher Michael Oakeshott. Timothy Fuller, Elizabeth Corey, and Justin Shubow evaluate Oakeshott’s contributions on the rule of law and the threats to political and individual liberty posed by advocates of telocratic government, that is, the use of law to achieve ideological conclusions. Below are excerpts from this month’s Forum.

Timothy Fuller: As Oakeshott says in the Lectures, commenting on Adam Smith,

The system of law, if it is to serve its purpose, must, of course, be appropriate to the kind of relationships which the members of the association are apt to enter into, and the kind of injuries they are most apt to do to one another. It, therefore, falls to government not only to administer the law, but also to see that this law is appropriate to its subjects….The business of government is not to impose an overall pattern of life upon its subjects, or to give a ‘purpose’ or ‘end’ to the activities of subjects who might otherwise not know what they should be doing.(Lectures, 494)

Oakeshott also spoke of the “ideological style” in politics. This style is dissatisfied with the unplanned, undesigned order which has come to be through a combination of chance and choice over a long period of time and which is understood through the familiarity those who participate in it acquire. Such order will be misunderstood if judged according to an independently premeditated model of what it “ought to look like.” Oakeshott argues that this ideological vision can never in fact be independent; it is constructed by abstraction from actual experience, offering what appears to be a coherent design only because it sets aside all the complexities with which, if it is “put into practice,” it will inevitably have to deal and which will immediately begin to reveal its inappropriateness . . .

Elizabeth Corey: Telocracy is, indeed, the model for most of what we do as human beings: running a business, educating children, or promoting a political cause. In this mode of association there is only “Purpose, Plan, Policy and Power.”[2] But what also characterizes it is our ability to enter and exit at will; and this is why Oakeshott considers it an inappropriate model for government. If government itself becomes “telocratic” we have little ability to protest and no real possibility of exit. We are compelled, by force or threat, to take substantive action of a sort that we may or may not approve, all in the service of an end we have not chosen. To paraphrase Oakeshott, there is only one thing worse than hearing the dreams of others, and that is being forced to live them yourself.

One other point is worth noting about this notion of purposive government. As Oakeshott points out, people who favor the telocratic model very often express themselves in the terms of emergency, war and necessity, arguing that a chosen end is not merely desirable but essential for all. It is “not insignificant that the rhetoric of telocratic belief is always liberally sprinkled with military analogy.”[3]Thus we see recent religiously-motivated opposition to the HHS contraceptive mandate characterized not as legitimate objection to a disliked policy but as a “war on women.” Law, in this telocratic vision, is not a neutral set of regulations but a tool that helps or hinders the achievement of a substantive end. The end, not the means, is always most important.

Justin Shubow: Oakeshott’s views must seem all the more alien to Americans. Oakeshott criticizes the Declaration of Independence and Bill of Rights for being ideological, for being ground in abstract principles. Ideologies, he contends, are always abridgments of actual practice. Although they might make explicit some of what was implicit, ideologies necessarily leave out much of what is important since it is impossible to articulate every aspect of a practice. Practices are akin to vernacular language: the rules of grammar and syntax can never tell one how to write a beautiful sentence. Ideologies as rulebooks for practice can be nothing more than cribs—thus their dangerous popularity with the inexperienced and unwise. All of this holds not just for political ideologies but for moral ideologies, such as Utilitarianism. They ignore the fact that nearly all practical decision-making is deliberative, not demonstrative; it is a matter of judgment.

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For Fuller, Oakeshott’s understanding of the “rule of law” is one where the rule of law serves, much like Rawls’ veil of ignorance, as a set of background conditions necessary in order for the modern state to support civil associations, e.g. procedures and expectations to secure opportunities for individuals to pursue their values (what economists call satisficing). Under this view, when the rule of law works, the state has a lot of civic noise: political contestation and partisanship, opinion-making, diversified media, institutional squabbling, etc. The question is whether this civic noise is aimed towards some kind of greater truth, e.g. Justice, or whether civic noise is crucial to the pragmatic goal of preserving the nexus of transactions that make up the panoply of civic associations within a state. In other words, does the Rule of Law aim for a state where ideas are associated via a jumble of interconnecting telecom-like wires or is wireless better if it leads to truth. Oakeshott (and conservatives) tend to claim that the rule of law is about process: make sure the law recognizes the transactions between firms and individuals that preserve civic goals, which indeed may include truth, justice, etc. Paternalists might see the ultimate goal not merely as a transactional one but as a utopian one. Fuller’s reading of Oakeshott is one where we rely on law as a background condition for making our exercise of freedom equitable. And yet this reading seems to render the rule of law as instrumental and limited — in the sense that it seems to recognize only private associations, e.g. when the Chamber of Commerce and the Jaycees prosper, the rule of law appears to be working. The distinction between lex and ius — or authenticity and desirability — seems at best a secondary concern for private associations and more a function of legislation. Indeed, part of what constitutional thinkers squabble about is whether questions of constitutional interpretation ought to be decided upon before the laws are passed (Congress) or after (the courts). Oakeshott claims that the rule of law is a mode (cf. Experience and Its Modes) of moral association, where law consists of non-instrumental rules, versus commands. There is an occasion to provide some practical background to all of this. Take, for instance, the D.C. Rules of Professional Conduct — how the D.C. Bar understands its ethical duties under the rule of law. The first sentence of the Rules states, “The Rules of Professional Conduct (Rules) are rules of reason.” This tenet seems to invoke immediate reference to Oakeshott’s “Rationalism in Politics”. In other words, the law, at least in America, is about technique and reason, not custom, habit or those non-instrumental and tacit “modes”. Nowhere in Fuller, Corey or Shubow’s discussion is a practical understanding of the rule of law for lawyers — which really has nothing to do with lex, ius, federalism or the Constitution. Most contemporary debates about the rule of law are about legitimacy, specifically judicial legitimacy. And perhaps Oakeshott would think those debates are confused, but those are the debates. They focus on judicial discretion and the proper role of judges as well as matters of deference, levels of review, and the application of rules or principles. In other words, these are debates within rationalism. Oakeshott would perhaps have something very telling to say about jurisprudence and it would likely be a criticism of its rationalistic nature, it’s focus on absolutes — canons of construction, constitutional principles, etc. versus the indicia of civitas that describes well-working civil associations. In other words, for Oakeshott questions of standing may not be best asked by consulting a technical apparatus of case law that raises issues of redressability, concreteness or injury-in-fact but instead may focus on the civic role of cases and controversies, especially when legislation affirmatively risks a change in the structure of legal or civic relationships.

But alas, Rationalism in Politics has biased the discussion of the “Rule of Law” above as narrow, pedantic and academic.

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